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Why Ratu Joni and Green were told to go

November 20
12:00 2008

image Written By : VICTOR LAL.

This is the continuation of a series of articles by Oxford-base academic Dr Victor Lal on had transpired at Government House leading to the
military coup of December 5 2006.
Two men felt the full brunt and fury of the military after the 5 December 2006 coup: one was thrown out of Fiji and the other was bundled out of Government House.
On 6 December 2006 the Vice President, Ratu Joni Madraiwiwi, was sent packing as deputy to President Ratu Josefa Iloilo.
And on 14 June 2007, the New Zealand High Commissioner Michael Green, was declared persona non-grata and booted out of Fiji.
In his press conference Commodore Frank Bainimarama at the military barracks called Green an enemy of Fiji: “Michael Green has been in our face from the 5th December.” That was the day when the military overthrew the SDL-FLP multi-party government.
Why was Green expelled from Fiji? Why did Bainimarama state that Green was in their face since 5 December 2006?
While Bainimarama had refused to say exactly why Green had been sent packing from Fiji, the newspapers speculated that it was a Fiji-All Blacks rugby game which was the last straw.
The commentators recalled Bainimarama’s comments: “The rugby union has done this country a disservice. Out of eight hundred thousand people in Fiji, they went and nominated the enemy of the day in a Kiwi to be chief guest.”
Yes, why was Green expelled? The most plausible answer, in my submission, resides in the deposed Prime Minister Laisenia Qarase’s September 2007 affidavit to the High Court.
He had attached a bundle of letters exchanged between the Government, Ratu Joni and Green on the legal role and place of the RFMF under the 1997 Constitution of Fiji.
Green’s opinion of 28 January 2006 to Ratu Joni was forwarded to Bainimarama for deliberation by his military legal advisers.
After Green was declared persona non grata, FHRC’s Shaista Shameem produced another 41-page report in June 2008, nominally on the deportation of newspaper publishers Russell Hunter and Evan Hannah (defending the publishers’ deportations saying they were long overdue and even recommended that I be charged on arriving on Fijian soil), and she reportedly claimed that she had emails written by Green showing secret interference in Fiji’s internal affairs.
She claimed Green was involved in “conspiracy to cripple the administration of justice in Fiji”.
Without providing details of Green’s email, she claims in the leaked report he wrote to Suva lawyer Graham Leung and discussed aspects of a Supreme Court case brought against Bainimarama by deposed Prime Minister Qarase.
Shameem said Green was part of “unsavoury email correspondence about the judiciary and individual judges” that was part of the conspiracy.
The then military spokesman Major Neumi Leweni said the military was aware of an alleged conversation between Leung and Green that was mentioned in the FHRC report.
Leweni said they were looking into the matter but were not in a position to comment fully on it: “What has been brought to our attention is the discussion between two individuals in which one of them has mentioned the RFMF. And as of now the RFMF will not make any comment on the issue until we’ve looked at the statement and actually see or hear what is written or said.”
Shameem’s leaked report, written in response to a request by former Opposition leader Mick Beddoes on whether the publishers’ human rights were violated is widely available on the internet. It can be accessed at: (http://kauri.aut.ac.nz:8080/dspace/bitstream/123456789/969/1/Human%20Rights%20Commission%20-%20Hannah%20and%20Hunter.pdf.)
Both Shameem and Beddoes had denied leaking the report to the New Zealand Sunday Star Times.
Meanwhile, in her 29 August 2007 report, Shameem had argued that the Constitutional position of the military had never really been articulated since 1990 and a question could have easily been referred to the Supreme Court for its opinion to avert potential public security threats.
She noted as follows: “Certainly the Human Rights Commission saw the military’s role as expressed in section 94 of the 1990 Constitution and imported into section 112 of the 1997 Constitution as being of constitutional interest. Section 94 (3) of the 1990 Constitution states: It shall be the overall responsibility of the Republic of the Fiji Military Forces to ensure at all times the security, defence and well being of Fiji and its peoples.”
Shameem disclosed that the FHRC formulated a legal analysis to assist the dialogue when the military and government first started crossing swords. The analysis was provided in early 2006 to Ratu Joni who was, at that time, seen as a possible mediator between the military and government.
But according to her: “The Vice President told the Commission (FHRC) later that he had subsequently sought and obtained an alternative opinion to that provided by the Commission from the New Zealand Government. He did not provide the Commission with a copy of that opinion, despite repeated requests. In any event, given that there appeared to be a legal issue to be tested, a question was supposed to be drafted by government for the Supreme Court’s opinion but we heard no further reports of this actually having been done. In our view, the Vice President failed to resolve the issue at that time – the executive could have dealt properly, effectively and impartially with the constitutional position of the military. Not having done so eventually sealed the fate, not only of the Government of Fiji, but apparently also of the Vice President himself.”
Although Ratu Joni had not allegedly provided Shameem with a copy of the advice from New Zealand, on 18 January 2006 Nacewa had written to the Attorney-General Qoriniasi Bale at the direction of the acting President Ratu Joni concerning the position of the RFMF under the Constitution in “light of recent exchanges in the media”.
The following, Nacewa wrote, had emerged as Ratu Joni reviewed the legalities in the respective position of the Government and the military.
Nacewa drew Bale’s attention to section 112(1), Section 94 (1) of the Constitution relating to the military in Fiji.
Nacewa told Bale on Ratu Joni’s behalf: “The point of this correspondence is merely to respectfully flag this line of reasoning for your consideration as regards the nature of the relationship between the Government and the military. It may require further examination and needs to be borne in mind for future reference. The issue was raised in passing with the Hon Prime Minister and the Commander when His Excellency met them on 16 January 2006.”
As I have noted above, a copy of this letter to Bale was also sent to Bainimarama in his capacity as commander of the RFMF.
On 28 February Bale, responding to the 18 January 2006 letter, had set out the considered legal opinion which represented the Government’s position regarding the views raised by Ratu Joni on the possible interpretation of section 112(1) of the Constitution.
He told Ratu Joni: “It is clear from the contents of the letter that the views were not intended to be regarded or treated by those to whom the letter was circulated as presenting a firm or final legal opinion on this subject. Instead, it presented an arguable legal interpretation formed by His Excellency on the relevant provisions of the Constitution for verification by my Chambers as Government’s principal legal adviser.”
Bale concluded: “In view of the extent to which the Commander of the RFMF appears to be relying on the preliminary views expressed by His Excellency as the basis of his understanding of the role and responsibility of the RFMF, I am not copying this letter to the Commander RFMF. Given the hostile attitude of the Commander RFMF against Government generally, it is respectfully suggested that we should leave it to His Excellency to determine the best means and time of communicating to the Commander the correct legal and constitutional position on this sensitive subject.”
Ratu Joni, in his acting capacity as President, wrote to Bainimarama on the constitutional position of the RFMF in 2006. “I write in the light of the continuing public observations by military spokespersons which have been justified on the basis of security matters falling within the purview of the Republic of Fiji Military Forces (RFMF),” Ratu Joni told Bainimarama.
In correspondence dated 18 January 2006, he reminded Banimarama, and Nacewa raised with Bale, at his (Ratu Joni’s) direction, the possibility that the RFMF might have a wider security role on a particular meaning of section 94(1) and (3) of the 1990 Constitution and section 112(1) of the 1997 Constitution.
“This was done to encourage discussion about the role of the RFMF in an evolving democracy such as ours. However, the issue was presented as an arguable proposition. It was not stated as the definitive view on the subject,” Ratu Joni said.
He disclosed to Bainimarama that on 28 January 2006 he (Ratu Joni) received a letter referenced FJ1/4 from the New Zealand High Commissioner (Michael Green) enclosing a legal opinion from the Legal Division of the New Zealand Ministry of Foreign Affairs on the subject.
“A copy was made available to you several weeks ago,” Ratu Joni reminded Bainimarama.
Ratu Joni said he had given the matter careful consideration in view of its importance.
“After further reflections, it is apparent to me that the position set out by the New Zealanders appears more persuasive i.e. Section 112(1) of our present Constitution does not import section 94(3) of its predecessor (i.e. the 1990 Constitution).
“Proceeding on the basis that section 94 of the 1990 Constitution was repealed by section 195(1) of its 1997 successor, the argument favouring the RFMF was that section 112(1) of the latter imported, by its terms section (41(1) and (3) of the former. As against this reasoning, the contending opinion is that section 112(1) does no more than assure the continuity of the RFMF without reviving section 94(3),” said Ratu Joni to Bainimarama.
These were, therefore, two conflicting interpretations of section 112 of the 1997 Constitution.
One imported section 94(1) and (3) of the 1990 Constitution and one which did not. This ambiguity was resolved by section 3(a) of the 1997 Constitution which states: “In the interpretation of a provision of this Constitution: (a) a constitution that would promote the purpose or object underlying the provisions, taking into account the spirit of this Constitution as a whole, is to be preferred to a constitution that would not promote that purpose or object”.
According to Ratu Joni, “Reading section 94(3) into the present Constitution would not be consonant with its emphasis on democracy, human rights and the rule of law. To echo the Reeves Report the provision gives the RFMF ‘functions going beyond those which should properly be assigned to the armed forces’”.
Furthermore, according to Ratu Joni, section 112(4) of the Constitution gives Parliament the power to make laws in relation to the RFMF.
“The preservation of section 94(3) of the previous Constitution would, in a very real sense, derogate from the power of Parliament to legislate for the RFMF in its entirety. Parliament cannot have intended to restrict itself in this manner, and this is further reinforcement for the repeal of section 94(3) of the 1990 Constitution,” said Ratu Joni.
Accordingly, he told Bainimarama, “the ambiguity must be resolved in favour of the narrower approach which merely preserves the continuity of the RFMF. The interpretation that purports to enlarge the role of the RFMF in terms of section 94(3) of the 1990 Constitution must be presumed to have been repealed to section 195(1) of the present Constitution”.
In canvassing the reasoning advanced in Nacewa’s missive earlier, Ratu Joni informed Bainimarama: “I had overlooked the findings of the Reeves Commission report, the effect of section 112(4) of the Constitution and the application of section 3(a) of the same. Neither had sufficient weight given to the effect of repeal as stated in section 195(1) of the Constitution. To rebut its effect, there must be a strong and irresistible implication to the contrary which, with respect, is not apparent in these circumstances. Consequently, the repeal stands. When taken in toto, they support a restricted interpretation of section 112(1) of the Constitution. I address these issues at length to place in proper context the actual role of the RFMF under the constitution.”
Ratu Joni went on to conclude: “I respectfully commend the foregoing to your legal advisers because it has profound implications for the RFMF and the role it sees for itself particularly after May 2000. Copies of the correspondence cited are annexed for your ease of reference.”
Ratu Joni copied the above letter also to President Ratu Josefa Iloilo, Prime Minister Qarase, Attorney-General and Minister for Justice Bale, Home Affairs Minister Vosanibola and Police Commissioner Andrew Hughes.
In submitting the opinion of the New Zealand legal ministry on the interpretation of the RFMF’s legal position, Green had concluded by informing Ratu Joni: “Not being a lawyer I shall refrain from comment on any of this but I should be interested in due course – as will be the Ministry’s lawyers – to learn what you think of this analysis.”
I do not know why Ratu Joni had not forwarded the NZ legal analysis to Shameem and the FHRC but did the actions and positions of Ratu Joni and Green warrant their respective evictions from the “House on the Hill” and out of New Zealand High Commission in Suva?
To be continued

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